Texts and other statements by a Massachusetts woman encouraging her teen boyfriend to kill himself are protected free speech and should not have been used against her, the woman’s attorneys say in their appeal seeking to overturn her conviction for involuntary manslaughter.

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The appeal, filed June 29 and obtained by PEOPLE, does not deny Carter’s actions. But it takes issue with statements made by Bristol County Juvenile Court Judge Lawrence Moniz, who concluded in his verbal ruling, “Carter’s actions and also her failure to act where she had a self-created duty to Mr. Roy, since she had put him in that toxic environment, constituted each and all wanton and reckless conduct.”

Conrad Roy

Roy Family

The judge in his decision highlighted two revelations from Carter’s trial. As Roy expressed his desire to abort his fatal plan by getting out of the truck, Carter told him to get back in, Moniz said. Then she initially failed to tell anyone else about it.

“She [instructed] Mr. Roy to get back into the truck, well-knowing of all of the feelings that he [had] exchanged with her: his ambiguities, his fears, his concerns,” Moniz said.

The judge added: “She did nothing. She did not call the police or Mr. Roy’s family. Finally, she did not issue a simple additional instruction [to Roy]: ‘Get out of the truck.'”

Carter’s appeal discusses Moniz’s statements. “Because the judge convicted Carter for what she said, or failed to say, not what she did, this case implicates free speech under the First Amendment and art,” her attorneys wrote.

The appeal reignites the debate about whether someone could legally be found guilty of a crime in this case if they weren’t on the scene.

If Carter’s conviction is allowed to stand, “Massachusetts would be the only state to uphold an involuntary manslaughter conviction where an absent defendant, with words alone, encouraged another person to commit suicide,” her attorneys wrote.

Prosecutors ‘Cherry-Picked’ Texts, Says Defense

The appeal further argues that prosecutors “cherry-picked” texts to portray Carter’s interactions with Roy, highlighting only those that served their case against her.

Michelle Carter

Matt West/The Boston Herald/AP

Carter has remained free on bail pending the outcome of the appeal.

Her lawyers contend that texts purportedly showing Carter’s compassion toward her friend were never presented as evidence. One such message reads: “I’m not giving up on you, it’s just every time I try to help you don’t listen.”

She also advised him to seek professional help in a number of messages, including one that reads, “You aren’t gonna get better on your own … you need professional help …”

The defense filing argues Carter herself needed help with an eating disorder, and texted Roy, “… we can go together so we will be there for each other.”

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According to the filing, the message in which Carter admitted she’d told Roy to “get back in” his truck after he exited with second thoughts actually was sent by her to a friend months later, although the defense contends prosecutors presented it as if she sent the text to Roy directly.

“It was Roy, not Carter, who researched the idea, developed the details, obtained the necessary equipment, picked the spot to park his truck, and put his fatal plan in motion,” the appeal states.

The Supreme Judicial Court has agreed to consider the appeal.

Carter’s defense team has previously indicated they will take the case to federal court if it isn’t overturned at the state level.

Prosecutors said Carter and Roy exchanged more than 1,000 texts in the week prior to Roy’s death.

Among those were ones from her that stated: “You always say you’re gonna do it, but you never do. I just want to make sure tonight is the real thing,” “You just have to do it” and “It’s painless and quick.”